Balasundram, Suresh Vamadeva v Minister for Immigration & Multicultural Affairs [1997] FCA 577

FOR LIMITED DISTRIBUTION ONLY CATCHWORDS MIGRATION LAW - Review of decision of Refugee Review Tribunal not to grant protection visa - Whether the Tribunal had failed to apply the "real chance" test - Whether the Tribunal adopted a fixed set of general criteria rather than considering the individual circumstances of the applicant - Use by the Tribunal of the word "threshold" Migration Act 1958 ss 36(2), 476(1)(d), 476(1)(e), 476(3)(c) Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 BALASUNDRAM v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS VG 222 of 1996 Before: NORTH J Place: MELBOURNE Date: 8 MAY 1997

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VG 222 of 1996 B E T W E E N : SURESH VAMADEVA BALASUNDRAM Applicant AND MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent MINUTES OF ORDERS BEFORE: North J PLACE: Melbourne DATE: 8 May 1997 THE COURT ORDERS THAT: 1. The application is dismissed with costs.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VG 222 of 1996 B E T W E E N : SURESH VAMADEVA BALASUNDRAM Applicant AND MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent BEFORE: North J PLACE: Melbourne DATE: 8 May 1997 EX TEMPORE REASONS FOR JUDGMENT This is an application under s 476(1) of the Migration Act 1958 in which the applicant seeks a review of a decision of the Refugee Review Tribunal made on 2 April 1996. The Tribunal affirmed the decision of the primary decision-maker, which had the effect of a refusal to grant the applicant a protection visa. Section 36(2) of the Migration Act provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen to whom Australia has protection obligations under the Refugees Convention 1951 as amended by the Refugees Protocol 1967. The Convention and Protocol provide for protection obligations for persons who are refugees. A refugee is defined as a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." The applicant is a national of Sri Lanka. He is a Tamil and was born on 26 June 1959. He came to Australia on 20 December 1989 on a visitor's visa. His claim to be a refugee was on the basis of his imputed political opinion and his ethnicity. The Tribunal rejected his claims. APPLICANT'S CASE BEFORE THE TRIBUNAL The applicant worked in Colombo as a marketing executive from 1980 to 1989. His claim had three aspects. The first related to his fear of persecution as a result of his involuntary involvement with the Janatha Vimukthi Peramuna in the mid 1980s. The applicant does not challenge the Tribunal's rejection of this aspect of his claim. The second aspect was his fear of persecution as a result of his imputed association with the Liberation Tigers of Tamil Eelam (LTTE) and the third aspect was his fear of persecution as a result of his Tamil ethnicity. The Tribunal set out his claims in relation to his association with the LTTE as follows: "In November 1993 the STF came to his home and interrogated his parents. His relatives who were staying, including his cousin from Jaffna, were also questioned. His cousin was arrested as an LTTE suspect. The family do not know the whereabouts of his cousin; he just disappeared after his arrest. The authorities said they released his cousin the day after his arrest, but the family do not believe this to be the case. The applicant believes that the authorities might impute an LTTE profile to the applicant because he was close to his cousin and often visited him in Jaffna. In response to questions by the Tribunal regarding whether or not his cousin was involved in LTTE activities the applicant stated that he might have been, but he did not know and his parents do not know either. In February 1996 the applicant attended a public gathering organised by the Melbourne Tamil community. The purpose of the gathering was to disseminate information about the situation of Tamils in Sri Lanka. It was not organised by any particular political group, however there were LTTE banners and people were videoing and taking pictures during the gathering. The authorities in Sri Lanka know of his attendance at this gathering and he is suspected of collecting money to support their cause."